Court of Appeal Does Strike Nonstatutory Costs Award, Following Ripley Over Bussey.
In Gaggero v. Yura, Case No. B203780 (2d Dist., Div. 5 Sept. 14, 2009) (unpublished), defendant won a purchase agreement dispute with a contractual fees clause after the trial court found that a condition precedent—CC&Rs—was not agreed on between both sides. (Seller did not want to allow any dogs; co-contributor Mike and his Labrador Riffle say “boo.”) Defendants then moved for an award of $63,829.18 in costs (including both statutory and nonstatutory costs) and $645,492.50 in fees. The trial court awarded almost the full request to defendant–$63,806.18 in costs and $643,606.76 in fees. Plaintiff appealed.
With respect to costs, the appellate panel did modify the judgment to delete nonstatutory costs, preferring to follow Ripley v. Pappadopoulos, 23 Cal.App.4th 1616, 1624-1625 (1994) (disallowing nonstatutory costs) over Bussey v. Affleck, 225 Cal.App.3d 1162, 1167 (1990) (allowing nonstatutory costs award). (BLOG REVIEW—Ripley is the majority view on this issue, as we have discussed on our previous June 5, 2008 general subject matter post as well as June 4, 2008 post on Richlin Security and November 5, 2008 post on Ekstrom. See discussion of this split in Carwash of America-PO v. Windswept Ventures No. 1, 97 Cal.App.4th 540, 544 (2002).) So, add the Second District, Division 5 to the list of courts that endorse Ripley.
That brought up the propriety of the substantial fee award. That issue came down fully in defendant’s favor. Prevailing parties are entitled to an award of fees, in the trial court’s discretion, for unsuccessful activities. (City of Sacramento v. Drew, 207 Cal.App.3d 1287, 1303 (1989).) In this case, defendant did obtain fees rightfully for unsuccessfully attempting to uphold a lower court summary judgment victory, even though the appellate court reversed the grant in an earlier opinion. “Having obtained a summary judgment, it was reasonable for the trial court to conclude that defendant was justified in attempting to uphold that judgment on appeal” (Slip Opn., at p. 29.)
BLOG FAVORITE QUOTE—“The process of litigation is often more a matter of flail than flair; if the criteria of [Code of Civil Procedure] section 1021.5 are met the prevailing flailer is entitled to an award of attorney fees.” City of Sacramento, supra, 207 Cal.App.3d at 1303.
